from the the-system-forgets-to-work dept

On December 19, eight members of Texas’s Burleson County Sheriff’s Department banged open the door of the double-wide trailer rented by 28-year-old Henry Magee and his girlfriend. It was between five and six AM and the deputies, who were there to search for marijuana and stolen weapons, set off at least two flashbang grenades in an attempt to surprise and disorient Magee, their suspect. The leader of the team, Sergeant Adam Sowders, a seven-year veteran of the department, had requested the warrant be “no-knock,” meaning the police could enter the residence without announcing themselves. But it was possibly do to the confusion caused by the sudden entrance of the cops that led to Magee opening fire with a semi-automatic weapon and hitting Sowders. The cop later died, and Magee has been charged with capital murder, which can bring the death penalty in Texas.

A squad of officers smash through a person's door (possibly unannounced) pre-dawn and are greeted by gunfire. The surprising thing is that this doesn't happen more often, especially in a state like Texas, where a man's home is often his well-armed castle. But the prosecutor didn't see the deputy's fault in this incident and pursued capital murder charges. Keep in mind, part of what was being sought in the raid was an ultra-dangerous drug that is currently legal in two states. Also keep in mind that the guns they found weren't stolen, but because of the marijuana Magee possessed, the previously legal weapons were now illegal.

"This was a terrible tragedy that a deputy sheriff was killed, but Hank Magee believed that he and his pregnant girlfriend were being robbed," Magee's lawyer, Dick DeGuerin, told A.P. "He did what a lot of people would have done. He defended himself and his girlfriend and his home."

DeGuerin, a well-known defense attorney who has been practicing for half a century, said "he could not immediately remember another example of a Texas grand jury declining to indict a defendant in the death of a law enforcement officer."

The district attorney who pursued the capital murder charges against Magee even admitted the evidence against him wasn't solid.

"I believe the evidence also shows that an announcement was made," Renken said. "However, there is not enough evidence that Mr. Magee knew that day that Peace Officers were entering his home."

Despite this lack of evidence, Julie Renken went ahead and pursued capital murder charges in front of a grand jury, an entity most notable for its willingness to "indict a ham sandwich." The fact that Magee was able to walk away from that charge still remains the exception to the rule. As far as grand juries go, indicting is what they do best. They have it down to a science, as Gideon at A Public Defender points out.

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

276 indictments, all in under a half-day. Not a single one of the 276 accused were found not guilty. This is the grand jury system running on all cylinders.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

A grand jury rings up a 276-0 shutout in less time than it takes the average officer worker to get to their lunch break, but when people question whether a true justice system should be giving this much power to an entity that only hears one side of the case (the prosecution's), the supporters point out the rarities, like the one above, that supposedly prove the system (and its 52-second indictments) works.

The biggest obstacle to curbing grand juries (much less eliminating them) is the government itself.

The appeal of the grand jury to the government is obvious: you get to present your allegations to a group of civilians who aren’t in any way equipped to determine the veracity of the charges and who are most likely to side with you.

If that description doesn't seem too far removed from the rubber stamp of the FISA court with its non-adversarial approach, there's a good reason for that. Political figures harness voters by vowing to be tough on crime -- and there's no greater crime than terrorism. The best way to pitch a shutout and satisfy constituents demanding a "safer" country/city/neighborhood is to remove the batter from the equation.

Reader Comments

-Former Judge Who Was Caught Texting Instructions To Prosecutors Now Running For District Attorney Post-Texas Court Allows Cops To Search First, Acquire Warrants Later-Texas Deputy Sues 911 Caller For Not 'Adequately Warning' Him Of Potential Danger Or 'Making The Premises Safe'

I'd probably find more amusement if I looked at the Texas tag. But I digress. Such no-knock warrants should be deployed more carefully. Unless there is a strong possibility of evidence purging or something similar they just had to set a perimeter and announce themselves. And the guy was probably even more paranoid, his girl being pregnant and all.

Also, the grand jury issues seem to be another symptom of the unbalanced judicial system in the US that led to serious abuses (ie: Aaron Swartz, mass surveillance and so on). We've been focusing on the Executive issues with the NSA revelations but fact is the judicial system is severely rigged towards the parties with more money.

I personally have no idea how to even start fixing things when all 3 branches are operating in a... sub optimal way..

Got it right for once

276 indictments in four hours, all guilty... You'd have better odds playing Russian roulette with a semi-automatic pistol, due to the possibility of the gun jamming, and even they didn't think he deserved to be charged with murder for his actions.

Break into a house, unannounced, like armed robbers in the middle of the night, when there's children and/or a pregnant woman in the house, yeah, don't be surprised if you receive a high caliber welcome.

Re: Got it right for once

Got it completely wrong. A grand jury does not decide whether or not a person is guilty; a grand jury decides whether or not there is sufficient evidence to issue an indictment, to formally charge someone with a crime so the issue can proceed to trial.

A grand jury is a very different thing from a trial jury, and Tim's apparent lack of understanding on this point made this article painful to read.

Re: Re: Re: Got it right for once

The burden of proof is extremely low. "Could this person have done this crime based on this evidence." Not "Did he do it", not "Is it probable he did it", not even "Would you be willing to put money down on that he did it"; just "is it possible". In practical terms, think of it as "Could this convince a particularly gullible 3yo with severe retardation?" If so, you have to vote for the indictment. The grand jury exists to make sure prosecutors aren't just flinging indictments at people for the lulz. It does not exist to determine someone's guilt in any way, shape, or form - or even if the prosecution has a winnable case; just that it has a case (the petit jury's job is to determine guilt). For virtually all cases before a grand jury, it takes almost no time to establish that level of certainty. And no prosecutor is going to go through the trouble of bringing a case before a grand jury if he can't meet the requirements.

Re: Re: Got it right for once

Tim understands what a grand jury's purpose is. He's just questioning the effectiveness of it when it comes to evaluating whether there is enough evidence to proceed because of the average amount of time that the grand jury spends on considering that evidence. I also think the grand jury in this case did get it right. Unless there is enough evidence to suggest that he knew it was the police when he fired, then he shouldn't be charged.

Re: Re: Got it right for once

Fair enough, apparently I misread things when I did a quick search to find out about the process.

I'm thinking that one of the other commenters down below, Erik Grant, has it right, they didn't want this to come to court, so it wouldn't surprise me if they were intentionally sloppy, hoping that it wouldn't make it past this stage, and could then be swept under the rug.

Re: Re:Just wishing (also known as praying) wont change anything

You sir, (LEO officer, or just LEO appologist?) are wrong until there are consequeces for trampling the rights of The People this activity will continue and increase. And so I quote another, "Let this be a lesson to these gestopo stasi cocksuckers"

I would admonish that one to include,statist, oathbreaking, and traitor in your indeictment of the man!

Not wanting people to die makes one human, just wishing things were different, in my opinion indicates an unrealistic world view, and wishing that the various unconstitutional and criminal acts of our public servants would change without there being real consequences for their actions and not changing,indicates one is likley an idiot.

Re: Re: Re:Just wishing (also known as praying) wont change anything

One big problem with this statement is that it is predicated on the assumption the sweeping generalization that all cops are bad enough to warrant a death sentence. Personally, I am a frequent critic of police corruption, abuse, and their failure to actually serve their intended purpose. However, I am not about to say that police officers in general need to be killed for such actions. Bad cops need to be removed from their positions, punished, and replaced with those who will do the job correctly and with honor and integrity. I agree that it should be a lesson to the bad cops. I should also be a lesson to good cops that would make foolish decisions, like deciding to raid a house in the wee hours of the morning unannounced where the occupant could reasonably believe that the intruders were criminals threatening the safety of his family. More people do not necessarily have to die for them to learn from this. The wish that others should die is misplaced anger, similar to the misplaced anger that some cops have when they step over the line and lash out unnecessarily against citizens that they encounter.

All I'm sayin' is that if you kick down someones' door at the hairy ass-crack-of-dawn, run in screaming and shouting with fireworks going off and you get shot in the 'effing face (cause crooks of all stripes wear body armor) it is not man-slaughter, it is not murder, it's justifiable homicide and anyone that makes their living kicking in doors, shouting and setting off fireworks needs to remember that and decide if it is really worth doing what they are doing.

Folks that have lived in areas that have gone through severe political and econiomic strife have known forever that the most dangerous part of the day is from the front door of their house and their workplace and back.

The Stasi would do well to adopt the same tactics of South American Kidnappers and "Take-Down" the target of their warrant outside the house while the target is not expecting trouble and not ready for it. Less cops would get shot and fewer citizes would be murdered.

If the situation is serious enough to call for a no-knock warrant then taking the subject in to protective custody while searching the site in a way that increases the likleyhood of a no shooting incident, or at least one where ther is no doubt that it is the police, is a good idea.

All I'm saying is if you come in kicking and screaming to someones house, like mine, then the occupant is better off being judged by 12 than carried out by 6.

"All I'm sayin' is that if you kick down someones' door at the hairy ass-crack-of-dawn, run in screaming and shouting with fireworks going off and you get shot in the 'effing face (cause crooks of all stripes wear body armor) it is not man-slaughter, it is not murder, it's justifiable homicide and anyone that makes their living kicking in doors, shouting and setting off fireworks needs to remember that and decide if it is really worth doing what they are doing."

I absolutely agree with you on this and I think the grand jury here made the correct decision. Still it's sad that someone had to die.

"If the situation is serious enough to call for a no-knock warrant then taking the subject in to protective custody while searching the site in a way that increases the likleyhood of a no shooting incident, or at least one where ther is no doubt that it is the police, is a good idea."

This reminds me of what I said about Waco when it happened. They didn't need to storm the compound. They should have just watched and arrested him when he left to got to the grocery store or something, but they didn't because they were the ATF damn it! and they can storm the compound if they want to because no one can stop them. They may have been dumbasses that got what they deserved for their stupidity and hubris but still I wouldn't have wished them to die.

Really, if you don't stop to knock when you invade their homes in the middle of the night you deserve what you get. Their tactics invite disaster and it is only fitting that they should pay the price for it. It goes beyond karma and straight into natural consequences, i.e. "What did you think would happen?".

Obstacles to curbing grand juries

"The biggest obstacle to curbing grand juries (much less eliminating them) is the government itself."

Well, there is that pesky fifth amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"

I am surprised that no one has (yet) suggested "time of ... public danger" as a convenient way around it.

Re: Peace Officers?

Re: Re: Peace Officers?

It depends on where you are. In some areas, they're never called peace officers. Technically, there is a difference -- a "peace officer" is any law enforcement officer of any sort. Police officers are law enforcement officers of a specific sort.

Re: Peace Officers?

Except this mis-states what a grand jury does.The judge explains the law to the jury. The prosecutor puts on witnesses and tells the jury what evidence it has against the accused. The Jury's SOLE duty is to determine whether there is enough evidence for the state to charge the accused. The accused does not put on any evidence. Often the accused is not there, and sometimes does not know he is being indicted. There are no defense attorney's allowed. There is no "guilty or not guilty." It is purely one sided to find whether there is enough evidence to charge a person with a crime. And when you talk about cases, often many cases can be against the same person with the same evidence, or a group of people.

Re:

I agree. Elimination of the grand jury means charges can be brought against an individual regardless of the evidence without any review from the public. Even if the chances that the grand jury won't return an indictment are remote, elimination of the grand jury eliminates any chance of an over-zealous prosecutor bringing a case where someone is charged with a crime based on weak evidence requiring that they have to make the effort to defend themselves against those charges often at considerable hardship and expense. There is a reason this was written into the 5th amendment.

Re: Grand Juries

Also, grand juries can not convict anyone; only indict. Trial juries (aka petit juries) are the only juries which can render a verdict.

The idea of a grand jury, as noted, is to determine if the state has enough plausible evidence for an indictment to be issued against someone. Grand juries, if the prosecutors are doing their jobs, should return a large percentage as indictments.

Re:

The complaint in the article is more that it's too easy to get a Grand Jury to indict (the indictment every 52 seconds part summarizes this). The goal, per the article, is not to route around or skip the Grand Jury, rather to increase rigor so that the Grand Jury process is less inclined to result in indictment.

Please note this is not my opinion (I'm nt close enough to criminal justice procedures to really form an opinion on this), rather I'm trying to clarify the article.

I'm glad he doesn't have to go to trial. I was watching this case and hoping he would be exonerated. Marijuana is already legal in two states and it won't be long before it's legal in the entire US. Give it a few years.As for illegal guns I don't really feel there is such a thing personally. I believe the actions of the person with the gun should determine legality. Not the status of the gun itself.I wanna say "talk about living the dream" but I'm not sure it's appropriate because it is possible, however rare, that the officer killed was a good cop.

I've served on a Grand Jury

The writer seems to think that a grand jury some how has any thing to do with the guilty or not guilty verdict that comes from a trial. They don't. Simply put, the grand jury decides if there is enough evidence to warrant a bench trial. Generally speaking, if the prosecutors don't think they have the right stuff to win the trial, they won't seek a trial. This means that if there isn't enough evidence that the suspect might actually have done it, the case won't even go to the grand jury (There was a recent article about how a Colorado DA did not bring charges against a TSA agent for sexual misconduct because there wasn't enough evidence).

The grand jury's job is simple, look at what's there. Is there enough there to need the further examination of a trial or not. There is no determination of guilt or non-guilt.

As I recall, the time I served one of the cases we weighed was an arson case. There was evidence that the fire was set, there was damage to property. There was a suspect. So we sent it to trial. I think the suspect was proven not guilty. I don't know if they ever found the person that actually set the fire.

In this case, there was apparently not enough evidence to say the shooter knew it was law enforcement breaking down his door. In that case the castle laws take effect. There is no trial.

Re: I've served on a Grand Jury

"... if the prosecutors don't think they have the right stuff to win the trial, they won't seek a trial."

Umm, no. They will often seek an indictment even if the evidence is weak, knowing that poor defendants probably can't afford to defend themselves. They will then offer the defendant a "deal" in which they offer to not railroad them to the max if they will just plead guilty without making a fuss.

Well, the decision in itself is not surprising, as it only make sense. What's surprising is, that a texan grand jury judges in a way that makes sense, even though a dead cop is involved.

It's all a big tragedy, but maybe someone should learn from it, that only because a deputy requests a no-knock warrant, the risks of this should be waged against the crime that the suspect is searched for, and if it's not worth having someone dying from a search warrant, deny no-knock and keep all the citizens safer. Because one thing is sure: Noone would've died because of marijuana consumption or dealing.

Re: but 52 seconds! to decide whether or not to indict?

Yes. I've also served on a grand jury. You are literally only concerned about if there is enough evidence to justify a trial. There is no "beyond a reasonable doubt" or "preponderance of the evidence", just "is it possible that this person could have committed the crime from this evidence - not did he/she, just could he/she have".

And most of the stuff was incredibly obvious. "Person X was caught by the police exiting Business Y at 2am, carrying enough swag to stagger a mule; Person X does not own nor work at Business Y; the door was jimmied with a crowbar; and Person X's fingerprints are all over the crowbar." There may be some completely innocent reason for that, or the police may have bungled various aspects of the arrest to justify a not guilty verdict at a trial; but all the grand jury is concerned about is if charging Person X seemed reasonable (not is it reasonable they are guilty, but reasonable to charge them). And the overwhelming majority of cases were like the above - it's rather obvious Person X was being a bad boy, but all that needs to be proven is that the police weren't just being jerks in charging him.

There were edge cases. And those did involve some reasonable amounts of discussion and requests for more information. But my overwhelming take-away from the experience was that criminals are exceedingly dumb and Ocean's Eleven is fiction, not SOP.

Re: Re: Re: Re: but 52 seconds! to decide whether or not to indict?

in respectful disagreement

"The vast majority of criminal are idiots. If they weren't, they wouldn't be criminals."

I normally agree with you Mr. Fenderson, but I have to take exception with that second statement. I'm honestly not even sure if that would be true in an ideal world. The definition of a criminal is simply way too broad and subjective, due in no small part to the subjective nature of the laws/rules they're breaking, knowingly or otherwise (and I won't even begin to go into the issues surrounding enforcement).

Furthermore, I personally think that Howard Scott had the better word choice.

Knock knock

It's a good thing that bad guys would never knock, say they are the police, then rush in and commit crimes. Because that would mess up the whole thing where you can always be certain only the good guys would knock first and say "It's just the cops, so don't be confused by the stun grenades, menacing threats, semiautomatic weapons and ninja getup, because we're really friendly".

Re:

If I remember correctly, this whole no-knock nonsense is just another bad result of the drug war. I remember the argument being that they had to be able to enter like that because if they knock and announce, the suspects inside would flush all the evidence before they answer the door.

Meet military force with military force

Law enforcement agencies seem to want to be the Army. Not every interaction calls for overwhelming force, and use of it increases the chance it will be met with same. Why the no-knock? To preserve evidence, and increase the chances of a conviction. The conviction, IMHO, was not worth the life of an officer.

Re: Meet military force with military force

how was he to know what the hell was going on, when all that noise and kerfuffle happened at that time of the morning? i would think that those he didn't hit want to think themselves lucky. as bad as it was that this one deputy got hit and then died, the guy was protecting all that was his in that trailer. i cant see how he could be charged and tried for murder. murder is a previously conceived determination to inflict death on someone, isn't it? how could he possibly have that i9n play when he was asleep, in bed? i would also like to know what anyone else would do, given the same circumstances? the first instinct is survival, the second is protection of those who and things that are precious to you. what should come out of this is the stopping of 'No Knock' raids, pre-dawn or not!

This guy should take it to the courts at least put up some form of resistance to the no knock warrants. taking a life isn't an easy thing to get over, he'll have to live with that the rest of his life.

I know some other people have pointed it out, but I wanted to reiterate that the 276-0 record isn't that surprising. The prosecutor should never be trying to get an indictment unless he's sure he can get one, because if that's risky, there's absolutely no way you're going to get past reasonable doubt in a real trial.

The only reason to fail to secure a grand jury indictment is if you don't actually want to succeed, which is what happened here. A cop got shot in Texas. The DA in charge if this case wants to get re-elected without having his opponent say "He sides with criminals who shoot cops." So he gets the best of both worlds here - bring a case to the grand jury so he can say he tried, and lose the case because the guy wasn't really guilty of the crime. By all rights, failing to even secure an indictment is the best possible case because it means the spectacle ends with a whimper rather than a 6 month courtroom circus.

Only in America is the grand jury system abused. Just like only in Japan is the trial system abused, with a 99%+ conviction rate. Just like only in Sweden is the pre-trial detention system abused. Oh wait, all three countries' systems suck.

It's said that where there's smoke there's fire, and people seriously believe this (why?). They especially believe it when it comes to barbecuing the accused before guilt is determined.

Typos

First why did you repeat the typo from the original article? The sentence should be "But it was possibly DUE to the confusion caused by the sudden entrance of the cops...", not "But it was possibly do to the confusion caused by the sudden entrance of the cops...".

Second, how old is the lawyer? You said he's been practicing law for half a century, which is 50 years. If he graduated law school and became an attorney when he was 21, is he now 71? Are there many attorneys in their 70's still practicing law?

grand jury does not decide guilt

The grand jury only decides if there is enough evidence to go to trial and votes accordingly. The trial jury decides guilt or innocence. Therefore, it takes little time to decide to indict. It takes an exceedingly weak presentation of evidence, or in this case a gross miscarriage of justice to vote not to indict.

"No-Knock, Pre-Dawn Raids"

In my neighborhood, that's a very bad idea. Early morning is when most of the criminals(local thugs) decide to crash through your doors or windows, while your at home. Sometimes they do this in groups. I've had to shoot at these idiots on more than one occasion.